JPMA and CPSC Staff Discuss Ways to Improve Recall Negotiations

A November 10 meeting between the Juvenile Product Manufacturers Association (JPMA) and CPSC staff generated numerous actions and concepts aimed at alleviating tensions on compliance matters. The discussion was prompted by the organization's explanation that its members have concerns about the corrective action process, especially fast track.

Among JPMA's complaints were that some fast track recalls seem to take longer than expected, that staff seem to demand information versus having conversations about it, and that requests can seem out of balance to the situations. The time issue can mean that firms invest more resources than they intended, leading them to question fast track's value, said JPMA Public Affairs and Strategic Communications Executive Julie Vallese. The demands sometimes seem to rise to the level of threats and can be outside clear CPSC authority, such as redesigning websites so recall notices are higher and more prominent.

Ideas and actions from the conversation included:

Have all information up front: The fast track process does not involve required reporting information being exempted, noted Howard Tarnoff, acting director of the Compliance and Field Operations Office. He said that a slowed process is not in CPSC's interest either so agency staffers want speed too, but they must meet requirements.

Don't assume CPSC automatically accepts remedies: Compliance officers work with technical staff to assess if solutions are appropriate. Sometimes agency experts disagree with a proposal and that must be worked out.

Think like someone with less knowledge: A person close to a situation or product might not realize that unstated facts are not obvious to others, observed George Borlase, Hazard Identification and Reduction assistant executive director. Often, the goal of staffers' questions and requests might be to ensure something was done rather than to suggesting that it needs to be done.

Message tone and emphasis can change: This often is due to information being passed through layers of communications and between people with different concerns like lawyers versus engineers, said Tarnoff.

Have company and CPSC technical staff talk: Fast track team lead Tanya Topka said that she has encouraged such direct conversations and they often have led to quick resolution of differences. She offered to use the approach more if industry finds it beneficial. On this point, new Compliance Deputy Director Carol Cave asked if there are reasons why technical staff could not do this generally. Borlase answered that there is no policy against it.

Escalate if need be: Topka warned against assuming that the compliance officer is the only person the company can speak with. Call her or someone else in charge of the compliance officer or even higher up. Don't see it as "snitching or tattling," she said. Rather, she views such situations as "teaching moments" for the staffers, who have varying levels of experience. This can include helping the person understand why a message's intent and reception differed.

Companies have differing levels of sophistication: Vallese noted that some companies have much experience with both CPSC and recalls while others are novices. She urged that compliance officers be prompted to understand such variations. Mark Fellin, JPMA director of regulatory and legislative affairs, asked that CPSC staffers also be encouraged to work with companies versus demanding.

Companies do not always understand CPSC limits: As former CPSCers themselves, said Vallese, she and Fellin sometimes come to the agency's defense to help deflate complaints. She noted the highly-frustrating situation of a compliance officer seeking information "immediately," but when the company complies, it does not hear back for weeks. Although Vallese urged CPSC to consider what it means for a company to get such a request and how fast it will process it, she also said they have told companies that CPSC staffers might be dealing with other matters.

Inspections are stressful and can be misunderstood: Vallese pointed as valuable to a repeated presentation by Field Operations Director Dennis Blasius on what to expect during an inspection but said more companies need to hear the information. She added that JPMA reported to Blasius the concerns of some companies about inspectors being overly pushy and the issue seemed to disappear. Cave pointed to her recent role in imports surveillance to explain that some inspections can be used to educate versus confront. However, she noted that at a certain point, it can become obvious to everyone that staffers are looking for information to support a compliance action.

Tarnoff and Topka both strongly rejected as unfair the idea that a recent letter (PSL, 11/9/15) to commissioners on a company's recall experience is generally representative of other companies' experiences. Tarnoff noted that agency staffers are constrained in defending themselves due to 6(b) restrictions but said CPSC has reached out to the writer but has not heard back. This was a situation when technical staff did not agree with a remedy, but Topka noted that CPSC let the recall proceed without requested webpage changes, showing that staffers will compromise.